The Law Handbook 2024

150 SECTION 3: Fines, infringements and criminal law The frisk search is defined as a rapid and methodical running of hands over the person’s outer garments and an examination of anything worn by the person that can be conveniently removed and is voluntarily removed by the person (s 4(1)). The search must be carried out by a customs officer who is of the same sex as the detainee (s 219M(1)(b)). A person who refuses to submit to a frisk search or produce a thing required to be produced after submitting to a frisk search will be liable to an external search (s 219P). External search The provisions relating to an external search are in sections 219Q and 219R of the Customs Act. An external search means a search of the body of, and anything worn by, a person in order to determine whether the person is carrying any prohibited goods and to recover any such goods. It does not include an internal examination of the person’s body (s 4(1)). An external search can be carried out where a detention officer or police officer suspects on reasonable grounds that a person detained under section 219Q is unlawfully carrying prohibited goods on their body (s 219R(1)(b)). An external search can be carried out as soon as practicable if the person is not in need of protection and the person consents (s 219R(1)(c)). Otherwise, the detention officer or police officer must apply to an authorised officer, or a justice, to carry out an external search of the detainee (s 219R(1)(d)). If an order is made for an external search of a person in need of protection (i.e. who is under 17 or whose physical or mental condition makes them incapable of managing their own affairs (s 4(20)), their legal guardian, or a specified person capable of representing the detainee’s interests, must be present and the external search must be acceptable to this person (s 219R(5), (6)). The external search must be carried out by a police or customs officer of the same sex as the detainee (s 219R(10), (11)). An external search may be conducted using equipment; a videotape record may be made of the external search (ss 219R(11A), 219RAA). Internal search The provisions relating to an internal search are contained in the Customs Act (ss 219S–219Z). A detention officer or police officer who suspects on reasonable grounds that a person is internally concealing a suspicious substance may detain the person for the purposes of carrying out an internal, non-medical scan under section 219SA, or making an application for detention of the person (s 219S). If a person has been detained under section 219S, a customs officer may carry out an internal, non- medical scan of the person if the detainee is not in need of protection and the detainee consents to an internal, non-medical scan (s 219SA(1)). An application for a detention order must be made to a Federal Court or Supreme Court judge if the person is in need of protection. In other cases, the application may be made to these judges or to a magistrate (s 219T). An order for detention is made for an initial period of up to 48 hours and can be extended by the judge or magistrate for a further 48 hours. If an order for detention is not made or extended, the person must be released immediately (s 219T, 219V). If the person is in need of protection (as defined in ‘External search’, above), a person who is not a customs or police officer must be appointed to represent the detainee’s interests. If the person consents to an internal search and is not in need of protection, the search must be carried out as soon as practicable. If the person, or the person appointed to repre­ sent their interests, refuses to undergo an internal search, an application must be made to a Federal Court or Supreme Court judge for an order for an internal search. A judge must not make an order for an internal search unless satisfied that there are reasonable grounds for suspecting that the detainee is internally concealing a suspicious substance (s 219V(9)). An internal search must be carried out by a medical practitioner, in a place suitably equipped (s 219Z). The medical practitioner must not use any procedure involving surgical incision unless they consider it necessary because the detainee’s life is at risk (s 219ZF). A person detained for an internal search must be allowed to consult a lawyer of their choice (s 219W). There is no provision for this safeguard in relation to frisk and external searches.